EXHIBIT 10.30
REVOLVING CREDIT AGREEMENT
Dated as of June 30, 2004
TELECOMUNICACIONES DE PUERTO RICO, INC., a Puerto Rico corporation
(the "Borrower"), PUERTO RICO TELEPHONE COMPANY, INC., a Puerto Rico corporation
("PRTC" or "Guarantor" and, collectively with each Significant Subsidiary (as
hereinafter defined) that shall become a guarantor hereunder in accordance with
Section 5.01(j), the "Guarantors"), the banks, financial institutions and other
institutional lenders listed on the signature pages hereof, (the "Lenders") and
Banco Popular de Puerto Rico ("BPPR"), as administrative agent for the Lenders
(in such capacity, the "Agent"), agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms.
As used in this Agreement, the following terms shall have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
"Additional Bank Indebtedness" means collectively the Existing Bank
Indebtedness, and additional unsecured loans or other unsecured extensions of
credit to the Borrower by banks and other financial institutions.
"Advance" means an advance by a Lender to the Borrower as part of a
Borrowing and refers to a Base Rate Advance or a LIBOR Rate Advance (each
of which shall be a "Type" of Advance).
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 10% or more of the
Voting Stock of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
Voting Stock, by contract or otherwise; provided, however, that for
purposes of this credit agreement, BPPR shall not be deemed to be an
Affiliate of the Borrower.
"Agent's Account" means the account of the Agent maintained by the
Agent at BPPR with its office at 000 Xxxxx Xxxxxx Xxxxxx, Xxx Xxxx, Xxxxxx
Xxxx 00000, Account No. 1970, Attention: Corporate Banking.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Domestic Lending Office in the case of a Base Rate Advance and
such Lender's LIBOR Lending Office in the case of a LIBOR Rate Advance.
"Applicable Margin" means, for any Interest Period, 0.40% per annum
for LIBOR Rate Advances.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
higher of:
(a) the simple average of rates of interest announced
publicly in the Wall Street Journal by the commercial banks in New
York, New York, from time to time, as their prime commercial lending
rate that is offered to its customers generally (before giving
effect to any applicable margin); and
(b) 1/2 of one percent per annum above the Federal Funds
Rate.
"Base Rate Advance" means an Advance that bears interest as provided
in Section 2.06(a)(i).
"Borrower" has the meaning specified in the recital of parties.
"Borrower's Account" means the account of the Borrower maintained by
the Borrower at BPPR with its office at 000 Xxxxx Xxxxxx Xxx., Xxx Xxxx,
Xxxxxx Xxxx 00000, Account No. 030-303664.
"Borrowing" means a borrowing consisting of simultaneous Advances of
the same Type made by each of the Lenders pursuant to Section 2.01.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City or San Xxxx,
Puerto Rico, provided that, if the applicable Business Day relates to any
LIBOR Rate Advances, "Business Day" means a day of the year on which banks
are not required or authorized by law to close in New York City or San
Xxxx, Puerto Rico and on which dealings are carried on in the London
interbank market.
"Commitment" has the meaning specified in Section 2.01.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Consolidated Assets" means, for any period, the total assets of the
Borrower and its Subsidiaries as shown on the audited Consolidated balance
sheet or unaudited Consolidated balance sheet, as the case may be, as of
the end of the most recent fiscal quarter preceding such period.
"Controlling Interest" means (a) ownership of at least 35% plus one
share, of the Voting Stock of the Borrower and (b) the ability to appoint
a majority of the Board of Directors of the Borrower.
"Convert", "Conversion" and "Converted" each refers to a conversion
of Advances of one Type into Advances of the other Type pursuant to
Section 2.07 or 2.08.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of
such Person for the deferred purchase price of property or services (other
than trade payables incurred in the ordinary course of such Person's
business for which collection proceedings have not been commenced,
provided that trade payables for which collection proceedings have
commenced shall not be included in the term "Debt" so long as the payment
of such trade payables is being contested in good faith and by proper
proceedings and for which appropriate reserves are being maintained), (c)
all obligations of such Person evidenced by notes, bonds, debentures or
other similar instruments, (d) all obligations of such Person created or
arising under any conditional sale or other similar title retention
agreement with respect to property acquired by such Person (even though
the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such
property), (e) all obligations of such Person as lessee under leases that
have been, in accordance with GAAP, recorded as capital leases, (f) all
obligations of such Person in respect of acceptances, letters of credit or
similar extensions of credit, (g) all net obligations of such Person in
respect of Hedge Agreements,
(h) all Debt of others referred to in clauses (a) through (g) above or
clause (i) below guaranteed directly, or indirectly through a Subsidiary,
by such Person, or in effect guaranteed directly, or indirectly through a
Subsidiary, by such Person through a written agreement either (1) to pay
or purchase such Debt or to advance or supply funds for the payment or
purchase of such Debt or (2) to purchase, sell or lease (as lessee or
lessor) property, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such Debt or to assure
the holder of such Debt against loss and (i) all Debt referred to in
clauses (a) through (h) above secured by (or for which the holder of such
Debt has an existing right, contingent or otherwise, to be secured by) any
Lien on property (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not assumed or
become liable for the payment of such Debt.
"Debt to EBITDA Ratio" of any Person at any date means the ratio of
(a) Debt of the types that, in accordance with GAAP, would be classified
as indebtedness on a Consolidated balance sheet of such Person on such
date to (b) EBITDA for the period of four fiscal quarters of such Person
ended on or immediately prior to such date, provided that for purposes of
clause (a) of this definition, Debt shall not include (1) the obligations
specified in clause (g) of the definition thereof set forth above or (2)
with respect to the Borrower, any obligations which may be assumed by the
Borrower for guaranties of any indebtedness of the Borrower's employee
stock ownership plan up to an aggregate principal amount of $29,745,000.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Disclosed Litigation" has the meaning specified in Section 3.01(b).
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule I hereto or in the Assignment and Acceptance pursuant
to which it became a Lender, or such other office of such Lender as such
Lender may from time to time specify to the Borrower and the Agent.
"EBITDA" means the sum, determined on a Consolidated basis, of the
Borrower's (i) net income (or net loss), (ii) interest expense, (iii)
income tax expense, (iv) depreciation expense, (v) amortization expense
and (vi) non-cash severance charges in an aggregate amount not to exceed
$20,000,000 in calendar year 2004 and $20,000,000 in calendar year 2005.
"EBITDA to Interest Ratio" of any Person on any date means the ratio
of (a) EBITDA for the period of four fiscal quarters of such Person ended
on or immediately prior to such date to (b) interest payable on, and
amortization of debt discount in respect of, all Debt of such Person for
the period of four fiscal quarters of such Person ended on or immediately
prior to such date, provided that for purposes of clause (b) of this
definition, Debt shall not include the obligations specified in clause (g)
of the definition thereof set forth above.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; (ii) an Affiliate of a
Lender that is a financial institution and is majority-owned by such
Lender; (iii) any commercial bank organized under the laws of the
Commonwealth of Puerto Rico having total assets in excess of
$1,000,000,000 and with an unsecured long-term debt credit rating equal to
or greater than BBB+ from Standard & Poor's ("S&P") and Baa1 from Xxxxx'x
Investor Services, Inc. ("Moody's") or any other commercial bank having
total assets in excess of $1,000,000,000 and with an unsecured long-term
debt credit rating equal to or greater than BBB+ from S&P and Baa1 from
Moody's that has an Applicable Lending Office that is not subject to
deduction or withholding of Taxes; or (iv) any other Person approved by
the Agent and, so long as no Default has
occurred and is continuing, the Borrower, such approval not to be
unreasonably withheld; provided, however, that neither the Borrower nor
any Affiliate of the Borrower shall qualify as an Eligible Assignee.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of liability
or potential liability, investigation, proceeding, consent order or
consent agreement relating in any way to any Environmental Law,
Environmental Permit or Hazardous Materials or arising from alleged injury
or threat of injury to health, safety or the environment, including,
without limitation, (a) by any governmental or regulatory authority for
enforcement, cleanup, removal, response, remedial or other actions or
damages and (b) by any governmental or regulatory authority or any third
party for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment, decree
or judicial or agency interpretation, policy or guidance relating to
pollution or protection of the environment, health, safety or natural
resources, including, without limitation, those relating to the use,
handling, transportation, treatment, storage, disposal, release or
discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the Loan Parties' controlled group, or under common
control with the Borrower, within the meaning of Section 414 of the
Internal Revenue Code.
"ERISA Event" means (a) the occurrence of a reportable event, within
the meaning of Section 4043 of ERISA, with respect to any Plan unless the
30-day notice requirement with respect to such event has been waived by
the PBGC; (b) the application for a minimum funding waiver with respect to
a Plan; (c) the provision by the administrator of any Plan of a notice of
intent to terminate such Plan pursuant to Section 4041(a)(2) of ERISA
(including any such notice with respect to a plan amendment referred to in
Section 4041(e) of ERISA); (d) the cessation of operations at a facility
of any of the Loan Parties or any ERISA Affiliate in the circumstances
described in Section 4062(e) of ERISA; (e) the withdrawal by any of the
Loan Parties or any ERISA Affiliate from a Multiple Employer Plan during a
plan year for which it was a substantial employer, as defined in Section
4001(a)(2) of ERISA; (f) the imposition of a lien under Section 302(f) of
ERISA with respect to any Plan; (g) the adoption of an amendment to a Plan
requiring the provision of security to such Plan pursuant to Section 307
of ERISA; or (h) the institution by the PBGC of proceedings to terminate a
Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or
condition described in Section 4042 of ERISA that is reasonably expected
to result in the termination of, or the appointment of a trustee to
administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
"Events of Default" has the meaning specified in Section 6.01.
"Existing Bank Indebtedness" has the meaning specified in Schedule
5.02(d).
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the
next preceding Business Day) by the Federal Reserve Bank of
New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"GAAP" means (a) in the case of the preparation of all financial
reporting requirements, generally accepted accounting principles in the
United States, as in effect from time to time, and (b) in the case of the
calculation, certification and compliance with all financial tests and
covenants, generally accepted accounting principles in the United States,
as in effect on the date of the financial statements delivered to each
Lender in accordance with Section 4.01(e), in each case applied on a
consistent basis both as to classification of items and amounts.
"Guaranteed Obligations" has the meaning specified in Section 7.01.
"Guarantors" has the meaning specified in the recital of parties.
"Guaranty" has the meaning specified in Section 7.01.
"Hazardous Materials" means (a) petroleum and petroleum products,
byproducts or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas and
(b) any other chemicals, materials or substances designated, classified or
regulated as hazardous or toxic or as a pollutant or contaminant under any
Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Interest Period" means, for each LIBOR Rate Advance comprising part
of the same Borrowing, the period commencing on the date of such LIBOR
Rate Advance or the date of the Conversion of any Base Rate Advance into
such LIBOR Rate Advance and ending on the last day of the period selected
by the Borrower pursuant to the provisions below and, thereafter, with
respect to LIBOR Rate Advances, each subsequent period commencing on the
last day of the immediately preceding Interest Period and ending on the
last day of the period selected by the Borrower pursuant to the provisions
below. The duration of each such Interest Period shall be one, two, three
or six months, and subject to clause (iii) of this definition, any other
period, as the Borrower may, upon notice received by the Agent not later
than 11:00 A.M. (Atlantic Standard time) on the second Business Day prior
to the first day of such Interest Period, select; provided, however, that:
(i) the Borrower may not select any Interest Period that
ends after the Termination Date;
(ii) Interest Periods commencing on the same date for LIBOR
Rate Advances comprising part of the same Borrowing shall be of the
same duration; and
(iii) in the case of any such Borrowing, the Borrower shall
not be entitled to select an Interest Period having duration of any
period other than one, two, three or six months unless, by 2:00 P.M.
(Atlantic Standard Time) on the second Business Day prior to the
first day of such Interest Period, each Lender notifies the Agent
that such Lender will be providing funding for such Borrowing with
such Interest Period (the failure of any Lender to so respond by
such time being deemed for all purposes of this Agreement as an
objection by such Lender to the requested duration of such Interest
Period, provided that each Lender shall use commercially reasonable
good faith efforts to so respond); provided further that, if any or
all of the Lenders object to the requested duration of such Interest
Period for such Borrowing shall be one, two, three or six
months, as specified by the Borrower in the applicable Notice of
Borrowing as the desired alternative to the selected Interest
Period; and
(iv) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next
succeeding Business Day, provided, however, that, if such extension
would cause the last day of such Interest Period to occur in the
next following calendar month, the last day of such Interest Period
shall occur on the next preceding Business Day; and
(v) whenever the first day of any Interest Period occurs on
a day of an initial calendar month for which there is no numerically
corresponding day in the calendar month that succeeds such initial
calendar month by the number of months equal to the number of months
in such Interest Period, such Interest Period shall end on the last
Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Lenders" means BPPR and each Person that shall become a party
hereto pursuant to Section 9.07.
"LIBOR Lending Office" means, with respect to any Lender, the office
of such Lender specified as its "LIBOR Lending Office" opposite its name
on Schedule I hereto or in the Assignment and Acceptance pursuant to which
it became a Lender (or, if no such office is specified, its Domestic
Lending Office), or such other office of such Lender as such Lender may
from time to time specify to the Borrower and the Agent.
"LIBOR Rate" means, for any Interest Period for each LIBOR Rate
Advance comprising part of the same Borrowing, an interest rate per annum
equal to the rate per annum obtained by dividing (a) the rate per annum
(rounded upward to the nearest whole multiple of 1/16 of 1% per annum) as
quoted by Bloomberg Professional (currently on page BBVAM1, or any
succeeding page dealing with such quotes) as the London interbank offered
rate for deposits in U.S. dollars at approximately 11:00 A.M. (Atlantic
Standard time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period or, if for any reason
such rate is not available, the average (rounded upward to the nearest
whole multiple of 1/16 of 1% per annum, if such average is not such a
multiple) of the rate per annum at which deposits in U.S. dollars are
offered by at least three (3) major international commercial banks in
immediately available funds in the London interbank market at
approximately 11:00 A.M., Atlantic Standard Time, two Business Days before
the first day of such Interest Period in an amount approximately equal to
the contemplated LIBOR Rate Advance comprising part of such Borrowing to
be outstanding during such Interest Period and for a period equal to such
Interest Period by (b) a percentage equal to 100% minus the LIBOR Rate
Reserve Percentage for such Interest Period. The LIBOR Rate for any
Interest Period for each LIBOR Rate Advance comprising part of the same
Borrowing shall be determined by the Agent on the basis of applicable
rates furnished to and received by the Agent from the Initial Lenders two
Business Days before the first day of such Interest Period, subject,
however, to the provisions of Section 2.07. If for any reason such
quotations are no longer published by Bloomberg Professional, then the
quote shall be obtained from Moneyline Telerate Markets page 3750, or any
succeeding page dealing with such quotes.
"LIBOR Rate Advance" means an Advance that bears interest as
provided in Section 2.06(a)(ii).
"LIBOR Rate Reserve Percentage" for any Interest Period for all
LIBOR Rate Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the first day of
such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets consisting
of or including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which the
interest rate on LIBOR Rate Advances is determined) having a term equal to
such Interest Period.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind.
"Loan Party" means each of the Borrower and the Guarantors.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Loan Party or any Loan Party and its
Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a) the
ability of any Loan Party to conduct its business on substantially the
same basis as conducted on the Effective Date or (b) the ability of any
Loan Party to service its Debt obligations on a timely basis.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Loan Party or any ERISA Affiliate and at least one Person other than such
Loan Party and the ERISA Affiliates or (b) was so maintained and in
respect of which any Loan Party or any ERISA Affiliate could have
liability under Section 4064 or 4069 of ERISA in the event such plan has
been or were to be terminated.
"Note" means a promissory note of the Borrower payable to the order
of any Lender, in substantially the form of Exhibit A hereto, evidencing
the aggregate indebtedness of the Borrower to such Lender resulting from
the Advances made by such Lender.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Other Taxes" has the meaning specified in Section 2.13(b).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Liens" means, with respect to any Person, (a) Liens for
taxes, assessments and governmental charges and levies to the extent not
required to be paid under Section 5.01(b) hereof; (b) pledges or deposits
to secure obligations under workers' compensation laws or similar
legislation; (c) pledges or deposits to secure performance in connection
with bids, tenders, contracts (other than contracts for the payment of
money) or leases to which such Person is a party; (d) deposits to secure
public or statutory obligations of such Person; (e) materialmen's,
mechanics', carriers', workers', repairmen's or other like Liens in the
ordinary course of business, or deposits to obtain the release of such
Liens to the extent such Liens, in the aggregate, would not have a
Material Adverse Effect; (f) deposits to secure surety and appeal bonds to
which such Person is a party; (g) other pledges or deposits for similar
purposes in the ordinary course of business; (h) Liens created by or
resulting from any litigation or legal proceeding which at the time is
currently being contested in good faith by appropriate proceedings; (i)
leases made, or existing on property acquired, in the ordinary course of
business; (j) landlord's Liens under leases to which such Person is a
party; (k) zoning restrictions, easements, licenses, and restrictions on
the use of real
property or minor irregularities in title thereto, which do not materially
impair the use of such property in the operation of the business of such
Person or the value of such property for the purpose of such business; and
(l) bankers' liens, rights of set-off or analogous rights granted or
arising by operation of law to any deposits held by or other indebtedness
owing by any lender or any affiliate thereof to or for the credit or
account of such Person.
"Permitted Receivables Financing" means any financing pursuant to
which the Borrower or any Subsidiary of the Borrower may sell, convey, or
otherwise transfer to a Receivables Subsidiary or any other Person (in the
case of transfer by a Receivables Subsidiary), or grant a security
interest in, any accounts receivable (and related assets) of the Borrower
or such Subsidiary, provided that such financing shall be on customary
market terms and shall be non-recourse to the Borrower and its
Subsidiaries (other than the Receivables Subsidiary) except to a limited
extent customary for such transactions. The grant of a security interest
in any accounts receivable of the Borrower or any Subsidiary of the
Borrower (other than a Receivables Subsidiary) to secure Debt under any
credit facility shall not be deemed a Permitted Receivables Financing.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company or other entity, or a government
or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Public Debt Rating" means, as of any date, the rating that has been
most recently announced by any of S&P or Moody's, as the case may be, for
any class of non-credit enhanced long-term senior unsecured debt issued by
the Borrower. For purposes of the foregoing, (a) if any rating established
by S&P or Moody's shall be changed, such change shall be effective as of
the date on which such change is first announced publicly by the rating
agency making such change; and (b) if S&P or Moody's shall change the
basis on which ratings are established, each reference to the Public Debt
Rating announced by S&P or Moody's, as the case may be, shall refer to the
then equivalent rating by S&P or Moody's, as the case may be.
"Receivables Subsidiary" means a bankruptcy-remote,
special-purpose wholly owned Subsidiary formed in connection with a
Permitted Receivables Financing.
"Register" has the meaning specified in Section 9.07(d).
"Required Lenders" means at any time Lenders owed at least a
majority in interest of the then aggregate unpaid principal amount of
the Advances owing to Lenders, or, if no such principal amount is then
outstanding, Lenders having at least a majority in interest of the
Commitments.
"S&P" means Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc.
"Services Agreement" means the Services Agreement, dated as of March
2, 2004, by and among the Borrower, PRTC and Verizon Corporate Services
Group Incorporated, as amended, modified, renewed or replaced from time to
time.
"Significant Subsidiary" means at any time, with respect to the
Borrower, any Subsidiary, other than a Receivables Subsidiary, the assets
of which, in the aggregate, exceed 5% of the Consolidated Assets,
determined in accordance with GAAP.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any ERISA Affiliate and no Person other than the Loan Parties
and the ERISA Affiliates or (b) was so maintained and in respect of which
any Loan
Party or any ERISA Affiliate could have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of
such Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person, (b) the
present fair salable value of the assets of such Person is not less than
the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured, (c) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay such debts and liabilities
as they mature and (d) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for
which such Person's property would constitute an unreasonably small
capital. The amount of contingent liabilities at any time shall be
computed as the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability after
taking into account any indemnification pursuant to the terms of any
agreements entered into in connection therewith.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board of Directors of
such corporation (irrespective of whether at the time capital stock of any
other class or classes of such corporation shall or might have voting
power upon the occurrence of any contingency), (b) the interest in the
capital or profits of such limited liability company, partnership or joint
venture or (c) the beneficial interest in such trust or estate, is at the
time directly or indirectly owned or controlled by such Person, by such
Person and one or more of its other Subsidiaries or by one or more of such
Person's other Subsidiaries.
"Taxes" has the meaning specified in Section 2.13(a).
"Termination Date" means the earlier of June 30, 2005 and the date
of termination in whole of the Commitments pursuant to Section 2.04 or
6.01.
"Verizon" means Verizon Communications Inc., a Delaware corporation.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening
of such a contingency.
"Withholding Tax Change" means the approval by either the Chamber of
Representatives or the Senate of the Commonwealth of Puerto Rico of any proposal
to change any applicable law, treaty or government rule, regulation or order
which would require the Borrower to deduct or withhold any Taxes from or in
respect of any sum payable hereunder or under any Note to any Lender or the
Agent.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. Accounting Terms. All terms of an accounting or
financial nature not specifically defined herein shall be construed in
accordance with GAAP.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. Each Lender severally agrees, on the
terms and conditions hereinafter set forth, to make Advances to the Borrower
from time to time on any Business Day during the period from the Effective Date
until the Termination Date in an aggregate amount not to exceed at any time
outstanding the amount set forth opposite such Lender's name on the signature
pages hereof or, if such Lender has entered into any Assignment and Acceptance,
set forth for such Lender in the Register maintained by the Agent pursuant to
Section 9.07(d), as such amount may be reduced pursuant to Section 2.04 (such
Lender's "Commitment"). Each Borrowing shall be in an aggregate amount of
$1,000,000 or an integral multiple of $1,000,000 in excess thereof and shall
consist of Advances of the same Type made on the same day by the Lenders ratably
according to their respective Commitments. Within the limits of this Section
2.01, the Borrower may borrow under this Section 2.01, prepay pursuant to
Section 2.09 and reborrow under this Section 2.01.
SECTION 2.02. Making the Advances. (a) Each Borrowing shall be made
on notice, given not later than 11:00 A.M. (Atlantic Standard time) on the
second Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of LIBOR Rate Advances, or the Business Day of the proposed
Borrowing in the case of a Borrowing consisting of Base Rate Advances, by the
Borrower to the Agent, which shall give to each Lender prompt notice thereof by
telecopier, facsimile or telex. Each such notice of a Borrowing (a "Notice of
Borrowing") shall be by telephone, confirmed immediately in writing, or
telecopier, facsimile or telex in substantially the form of Exhibit B hereto,
specifying therein the requested (i) date of such Borrowing, (ii) Type of
Advances comprising such Borrowing, (iii) aggregate amount of such Borrowing,
and (iv) in the case of a Borrowing consisting of LIBOR Rate Advances, initial
Interest Period for each such Advance. Each Lender shall, before 12:00 noon
(Atlantic Standard time) on the date of such Borrowing, make available for the
account of its Applicable Lending Office to the Agent at the Agent's Account, in
same day funds, such Lender's ratable portion of such Borrowing. After the
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Agent will make such funds available to the
Borrower at the Borrower's Account.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select LIBOR Rate Advances for any
Borrowing if the aggregate obligation of the Lenders to make LIBOR Rate Advances
shall then be suspended pursuant to Section 2.07 or 2.11 and (ii) the LIBOR Rate
Advances may not be outstanding as part of more than twelve separate Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and binding on
the Borrower. In the case of any Borrowing that the related Notice of Borrowing
specifies is to be comprised of LIBOR Rate Advances, the Borrower shall
indemnify each Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill on or before the date specified in such
Notice of Borrowing for such Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss (excluding loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Advance to be made by such Lender as part of such Borrowing when such Advance,
as a result of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender
prior to the time of any Borrowing that such Lender will not make available to
the Agent such Lender's ratable portion of such Borrowing, the Agent may assume
that such Lender has made such portion available to the Agent on the date of
such Borrowing in accordance with subsection (a) of this Section 2.02 and the
Agent may, in reliance upon such assumption, make available to the Borrower on
such date a corresponding amount. If and to the extent that such Lender shall
not have so made such ratable portion available to the Agent, such Lender and
the Borrower severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Agent, at (i) in the case of the Borrower, the interest rate
applicable at the time to Advances comprising such Borrowing and (ii) in the
case of such Lender, the Federal Funds Rate. If such Lender shall repay to the
Agent such corresponding amount, such amount so repaid shall constitute such
Lender's Advance as part of such Borrowing for purposes of this Agreement and
the Borrower shall be relieved of its obligations to repay such amount under
this Section 2.02(d).
(e) The failure of any Lender to make the Advance to be made by it
as part of any Borrowing shall not relieve any other Lender of its obligation
hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Fees. (a) Facility Fee. The Borrower agrees to pay to
the Agent for the account of each Lender a facility fee on the aggregate amount
of such Lender's Commitment from the Effective Date in the case of BPPR and from
the later of the Effective Date and the effective date specified in the
Assignment and Acceptance pursuant to which it became a Lender in the case of
each other Lender until the Termination Date at a rate per annum equal to 0.125%
or at a rate per quarter equal to 0.03125%, payable in arrears quarterly on the
last day of each March, June, September and December, commencing September 30,
2004, and on the Termination Date.
(b) Agent's Fees. The Borrower shall pay to the Agent for its own
account such fees as may from time to time be agreed between the Borrower and
the Agent.
SECTION 2.04. Reduction of the Commitments. The Borrower shall have
the right, upon at least three Business Days' notice to the Agent, to terminate
in whole or reduce ratably in part the unused portions of the respective
Commitments of the Lenders, provided that each partial reduction shall be in the
aggregate amount of $2,500,000 or an integral multiple of $1,000,000 in excess
thereof.
SECTION 2.05. Repayment of Advances. The Borrower shall repay to the
Agent for the ratable account of the Lenders on the Termination Date the
aggregate principal amount of the Advances then outstanding.
SECTION 2.06. Interest. (a) Scheduled Interest. The Borrower shall
pay interest on the unpaid principal amount of each Advance owing to each Lender
from the date of such Advance until such principal amount shall be paid in full,
at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a
Base Rate Advance, a rate per annum equal at all times to the Base Rate in
effect from time to time, payable in arrears quarterly on the last day of
each March, June, September and December during such periods and on the
date such Base Rate Advance shall be Converted or paid in full.
(ii) LIBOR Rate Advances. During such periods as such Advance is a
LIBOR Rate Advance, a rate per annum equal at all times during each
Interest Period for such Advance to the sum of (x) the LIBOR Rate for such
Interest Period for such Advance, plus (y) the Applicable Margin in effect
from time to time, payable in arrears on the last day of such Interest
Period and, if such Interest Period has a duration of more than three
months, on each day that occurs during such Interest Period every three
months from the first day of such Interest Period and on the date such
LIBOR Rate Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default under Section 6.01(a), the Borrower shall pay
interest on (i) the unpaid principal amount of each Advance owing to each
Lender, payable in arrears on the dates referred to in clause (a)(i) or (a)(ii)
above, at a rate per annum equal at all times to 2% per annum above the rate per
annum required to be paid on such Advance pursuant to clause (a)(i) or (a)(ii)
above and (ii) to the fullest extent permitted by law, the amount of any
interest, fee or other amount payable hereunder that is not paid when due, from
the date such amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full and on demand,
at a rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid on Base Rate Advances pursuant to clause (a)(i) above.
SECTION 2.07. Interest Rate Determination. (a) The Agent shall give
prompt notice to the Borrower and the Lenders of the applicable interest rate
determined by the Agent for purposes of Section 2.06(a)(i) or (ii)
(b) If, with respect to any LIBOR Rate Advances, the Required
Lenders notify the Agent that the LIBOR Rate for any Interest Period for such
Advances will not adequately reflect the cost to such Required Lenders of
making, funding or maintaining their respective LIBOR Rate Advances for such
Interest Period, the Agent shall forthwith so notify the Borrower and the
Lenders, whereupon (i) each LIBOR Rate Advance will automatically, on the last
day of the then existing Interest Period therefor, Convert into a Base Rate
Advance, and (ii) the obligation of the Lenders to make, or to Convert Advances
into, LIBOR Rate Advances shall be suspended until the Agent shall notify the
Borrower and the Lenders that the circumstances causing such suspension no
longer exist.
(c) If the Borrower shall fail to select the duration of any
Interest Period for any LIBOR Rate Advances in accordance with the provisions
contained in the definition of "Interest Period" in Section 1.01, the Agent will
forthwith so notify the Borrower and the Lenders and such Advances will
automatically, on the last day of the then existing Interest Period therefor,
Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid principal amount of
LIBOR Rate Advances comprising any Borrowing shall be reduced, by payment or
prepayment or otherwise, to less than $10,000,000, such Advances shall
automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of any Event of
Default under Section 6.01(a), (i) each LIBOR Rate Advance will automatically,
on the last day of the then existing Interest Period therefor, Convert into a
Base Rate Advance and (ii) the obligation of the Lenders to make, or to Convert
Advances into, LIBOR Rate Advances shall be suspended.
(f) If on any date the Agent is unable to determine the LIBOR Rate
for any LIBOR Rate Advances to be made on such date,
(i) the Agent shall forthwith notify the Borrower and the Lenders
that the interest rate cannot be determined for such LIBOR Rate Advances,
(ii) each such Advance will automatically, on the last day of the
then existing Interest Period therefor, Convert into a Base Rate Advance
(or if such Advance is then a Base Rate Advance, will continue as a Base
Rate Advance), and
(iii) the obligation of the Lenders to make LIBOR Rate Advances or
to Convert Advances into LIBOR Rate Advances shall be suspended until the
Agent shall notify the Borrower and the Lenders that the circumstances
causing such suspension no longer exist.
SECTION 2.08. Optional Conversion of Advances. The Borrower may on
any Business Day, upon notice given to the Agent not later than 11:00 A.M.
(Atlantic Standard time) on the third Business Day prior to the date of the
proposed Conversion and subject to the provisions of Sections 2.07 and 2.11,
Convert all Advances of one Type comprising the same Borrowing into Advances of
the other Type; provided, however, that any Conversion of LIBOR Rate Advances
into Base Rate Advances shall be made only on the last day of an Interest Period
for such LIBOR Rate Advances and any Conversion of Base Rate Advances into LIBOR
Rate Advances shall be in an amount not less than $10,000,000. Each such notice
of a Conversion shall, within the restrictions specified above, specify (i) the
date of such Conversion, (ii) the Advances to be Converted and (iii) if such
Conversion is into LIBOR Rate Advances, the duration of the initial Interest
Period for each such Advance. Each notice of Conversion shall be irrevocable and
binding on the Borrower.
SECTION 2.09. Optional Prepayments of Advances. The Borrower may,
upon notice not later than 11:00 A.M. (Atlantic Standard time) for Base Rate
Advances and upon at least two Business Days' notice to the Agent for LIBOR Rate
Advances stating the proposed date and aggregate principal amount of the
prepayment, and if such notice is given the Borrower shall, prepay the
outstanding principal amount of the Advances comprising part of the same
Borrowing in whole or ratably in part, together with accrued interest to the
date of such prepayment on the principal amount prepaid; provided, however, that
(x) each partial prepayment shall be in an aggregate principal
amount of $1,000,000 or an integral multiple of $1,000,000 in excess thereof and
(y) in the event of any such prepayment of a LIBOR Rate Advance, the Borrower
shall be obligated to reimburse the Lenders in respect thereof pursuant to
Section 9.04(c).
SECTION 2.10. Increased Costs. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any written guideline or request from any
central bank or other governmental authority (whether or not having the force of
law), there shall be any increase in the cost to any Lender of agreeing to make
or making, funding or maintaining LIBOR Rate Advances (excluding for purposes of
this Section 2.10 any such increased costs resulting from (i) Taxes or Other
Taxes (as to which Section 2.13 shall govern) and (ii) changes in the basis of
taxation of overall net income or overall gross income by the United States or
by the foreign jurisdiction or state under the laws of which such Lender is
organized or has its Applicable Lending Office or any political subdivision
thereof), then the Borrower shall from time to time, upon demand by such Lender
(with a copy of such demand to the Agent), pay to the Agent for the account of
such Lender additional amounts sufficient to compensate such Lender for such
increased cost (whether or not such increased costs arise prior to the receipt
of written notification from such central bank or other governmental authority);
provided that the Borrower shall not be required to pay any such increased costs
to the extent such increased costs accrued prior to the date that is six months
prior to such notice, provided further that, if the change in law or
circumstance giving rise to such increased costs or reductions is retroactive,
then the six-month period referred to above shall be extended to include the
period of retroactive effect thereof. A certificate as to the amount of such
increased cost, submitted to the Borrower and the Agent by such Lender, shall be
conclusive and binding for all purposes, absent error in the calculation of such
amount.
(b) If any Lender determines that compliance with any law or
regulation or any written guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender (excluding any reserves
included in the computation of the LIBOR Rate) and that the amount of such
capital is increased by or based upon the existence of such Lender's commitment
to lend hereunder and other commitments of this type, then, upon demand by such
Lender (with a copy of such demand to the Agent), the Borrower shall pay to the
Agent for the account of such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender or such
corporation (whether or not such amounts arise prior to the receipt of written
notification from such central bank or other governmental authority) in the
light of such circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable (in the proportion that such
Lender's Commitment hereunder bears to all of such Lender's commitments of this
type) to the existence of such Lender's commitment to lend hereunder; provided
that the Borrower shall not be required to compensate such Lender to the extent
such amounts arose prior to the date that is six months prior to such notice,
provided further that, if the change in law or circumstance giving rise to such
increased costs or reductions is retroactive, then the six-month period referred
to above shall be extended to include the period of retroactive effect thereof.
A certificate as to such amounts submitted to the Borrower and the Agent by such
Lender shall be conclusive and binding for all purposes, absent error in the
calculation of such amounts.
(c) Any Lender claiming any additional amounts payable pursuant to
this Section 2.10 agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to minimize such additional
amounts and to change the jurisdiction of its Applicable Lending Office if the
making of such a change would avoid the need for, or reduce the amount of, any
additional amounts that may thereafter accrue and would not, in the reasonable
judgment of such Lender, be otherwise notably disadvantageous to such Lender.
The Borrower shall reimburse such Lender for such Lender's reasonable expenses
incurred in connection with such change or in considering such a change in an
amount not to exceed the Borrower's pro rata share of such expenses based on
such Lender's Commitment and Advances and the total lending commitments and
loans of such Lender to its similarly situated customers.
SECTION 2.11. Illegality. Notwithstanding any other provision of
this Agreement, if any Lender shall notify the Agent that the introduction of or
any change in or in the interpretation of any law or regulation makes it
unlawful, or any central bank or other governmental authority having relevant
jurisdiction asserts that it is unlawful, for any Lender or its LIBOR Lending
Office to perform its obligations hereunder to make LIBOR Rate Advances or to
fund or maintain LIBOR Rate Advances hereunder, (i) each LIBOR Rate Advance made
by such
Lender will automatically, upon such demand, Convert into a Base Rate Advance
and (ii) the obligation of such Lender to make LIBOR Rate Advances or to Convert
Advances into LIBOR Rate Advances shall be suspended until the Agent shall
notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION 2.12. Payments and Computations. (a) The Borrower shall make
each payment hereunder and under the Notes without counterclaim or set-off not
later than 11:00 A.M. (Atlantic Standard time) on the day when due in U.S.
dollars to the Agent at the Agent's Account in same day funds. The Agent will
promptly thereafter cause to be distributed like funds relating to the payment
of principal or interest or fees ratably (other than amounts payable pursuant to
Section 2.03, 2.10, 2.13 or 9.04(c)) to the Lenders for the account of their
respective Applicable Lending Offices, and like funds relating to the payment of
any other amount payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
Section 9.07(c), from and after the effective date specified in such Assignment
and Acceptance, the Agent shall make all payments hereunder and under the Notes
in respect of the interest assigned thereby to the Lender assignee thereunder,
and the parties to such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date directly
between themselves.
(b) All computations of interest based on the Base Rate shall be
made by the Agent on the basis of a year of 365 or 366 days, as the case may be,
and all computations of interest based on the LIBOR Rate or the Federal Funds
Rate and of fees shall be made by the Agent on the basis of a year of 360 days,
in each case for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest or fees
are payable. Each determination by the Agent of an interest rate hereunder shall
be conclusive and binding for all purposes, absent error in the calculation of
such interest rate.
(c) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or fee, as the case
may be; provided, however, that, if such extension would cause payment of
interest on or principal of LIBOR Advances to be made in the next following
calendar month, such payment shall be made on the next preceding Business Day.
(d) Unless the Agent shall have received notice from the Borrower
prior to the time on which any payment is due to the Lenders hereunder that the
Borrower will not make such payment in full, the Agent may assume that the
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the Agent,
each Lender shall repay to the Agent forthwith on demand such amount distributed
to such Lender together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender repays such
amount to the Agent, at the Federal Funds Rate.
SECTION 2.13. Taxes. (a) Subject to subsections (e) and (f) below,
any and all payments by the Borrower hereunder or under the Notes shall be made,
in accordance with Section 2.12, free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto imposed by Puerto Rico,
the United States or any political subdivision of either (or in the case of any
payments by or on behalf of the Borrower through an account or branch outside
the United States or Puerto Rico or by or on behalf of the Borrower by a payor
that is not a United States person or not organized or resident in Puerto Rico
such payments shall be made free and clear of and without deduction for any and
all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto imposed by a foreign
jurisdiction or any political subdivision thereof), excluding, in the case of
each Lender and the Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it in lieu of net income taxes (x) in the case of a
Lender pursuant to the laws of the jurisdiction (or any political subdivision or
taxing authority therein) in which it is organized or in which the principal
office of such Lender, or Applicable Lending Office of such Lender is located,
or (y) in the case of any payment to the Agent in its capacity as Agent, the
jurisdiction (or any political subdivision or taxing authority therein) in which
it is organized or in which the principal office of the Agent is located or in
which the office designated by the Agent to act as Agent is located (all such
non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities in respect of
payments hereunder or under the Notes being hereinafter referred to as "Taxes").
Subject to subsections (e) and (f) below, if the Borrower shall be required by
law to deduct any Taxes from or in respect of any sum payable hereunder or under
any Note to any Lender or the Agent, (i) the sum payable shall be increased as
may be necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.13) such
Lender or the Agent (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance with
applicable law. Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Agent, at its address referred to in Section 9.02,
the original or a certified copy of a receipt evidencing payment thereof. For
purposes of this subsection (a) and subsection (e), the terms "United States"
and "United States person" shall have the meanings specified in Section 7701 of
the Internal Revenue Code.
(b) In addition, the Borrower agrees to pay any stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or under the Notes or from the
execution, delivery or registration of, performing under, or otherwise with
respect to, this Agreement or the Notes as a result of the introduction of or
any change in or in the interpretation of any law or regulation after the
Effective Date (hereinafter referred to as "Other Taxes").
(c) Subject to subsections (d), (e) and (f) below, the Borrower
shall indemnify each Lender and the Agent for the full amount of Taxes or Other
Taxes (to the extent not previously paid under subsection (a) or (b) above)
imposed on or paid by such Lender or the Agent (as the case may be) and any
liability (including penalties, interest and expenses but excluding any taxes
imposed by any jurisdiction on amounts payable under this Section 2.13) arising
therefrom or with respect thereto. This indemnification shall be made within 30
days from the date such Lender or the Agent (as the case may be) makes written
demand therefor.
(d) Each Lender organized under the laws of a jurisdiction outside
of Puerto Rico from time to time, as requested in writing by the Borrower (but
only so long as such Lender remains lawfully able to do so), shall provide each
of the Agent and the Borrower with two properly and accurately completed and
duly executed original copies of any form, document or other certificate that is
necessary for such Lender to be exempt from, or entitled to a reduced rate of
Taxes or payments hereunder or under the Notes or for the Borrower to determine
the applicable rate of deduction or withholding of any Taxes. If any Lender
which is organized under the laws of a jurisdiction outside of Puerto Rico is
unable to provide the above-described forms, documents or other certificates for
a relevant interest period (or if the Lender's appropriate personnel responsible
for providing the forms, documents or other certificates actually become aware
that the forms, documents or other certificates provided by it are inaccurate),
such Lender shall notify the Borrower in writing prior to or immediately upon
the commencement of such relevant interest period.
(e) For any period with respect to which a Lender has failed to
provide the Borrower with the appropriate form, document or other certificate
requested by the Borrower in accordance with Section 2.13(d) (other than if such
failure is due to a change in any applicable law, treaty or government rule,
regulation or order, or any change in the interpretation, administration or
application thereof occurring subsequent to the date hereof such that such
Lender is not lawfully able to provide the Borrower with the appropriate form,
document or other certificate, or if such form, document or other certificate is
no longer required to establish an exemption from the applicable tax), such
Lender shall not be entitled to indemnification under Section 2.13(a) or (c)
with respect to Taxes by reason of such failure and the Borrower shall be
entitled to withhold Taxes from payments to such Lender; provided, however, that
should a Lender become subject to Taxes because of its failure to deliver a
form, document or other certificate required hereunder, the Borrower shall take
such steps at such Lender's expense as such Lender shall reasonably request to
assist such Lender to recover such Taxes.
(f) Notwithstanding anything else contained in this Section 2.13,
the Borrower shall only be required to pay additional sums with respect to Taxes
(subject to subsection (h) below) to a Lender (or the Agent, as the case may be)
pursuant to subsection (a) or (c) above if the obligation to pay such Taxes
results from such Lender's inability to obtain a complete exemption from Taxes
as a result of (i) any amendment to the laws (or any regulations thereunder), or
any amendment to, or change in, an interpretation or application of any such
laws or
regulations by any legislative body, court, governmental agency or regulatory
authority adopted or enacted after the date hereof (or in the case of an entity
that becomes a Lender after the date hereof, the date such entity becomes a
Lender), (ii) an amendment, modification or revocation of any existing
applicable tax treaty ratified, enacted or amended after the date hereof (or in
the case of an entity that becomes a Lender after the date hereof, the date such
entity becomes a Lender), or (iii) the ratification of a new tax treaty ratified
after the date hereof (or in the case of an entity that becomes a Lender after
the date hereof, the date such entity becomes a Lender).
(g) In the event that the Borrower makes an additional payment
under Section 2.13(a) or 2.13(c) for the account of any Lender and such Lender,
in its sole opinion, determines that it has finally and irrevocably received or
been granted a credit against, or relief or remission from, or repayment of, any
tax paid or payable by it in respect of or calculated with reference to the
deduction or withholding giving rise to such additional payment, such Lender
shall, to the extent that it determines that it can do so without prejudice to
the retention of the amount of such credit, relief, remission or repayment, pay
to the Borrower such amount as such Lender shall, in its sole opinion, have
determined is attributable to such deduction or withholding and will leave such
Lender (after such payment) in no worse position than it would have been had the
Borrower not been required to make such deduction or withholding. Nothing
contained herein shall (i) interfere with the right of a Lender to arrange its
tax affairs in whatever manner it thinks fit or (ii) oblige any Lender to claim
any tax credit or to disclose any information relating to its tax affairs or any
computations in respect thereof or (iii) require any Lender to take or refrain
from taking any action that would prejudice its ability to benefit from any
other credits, reliefs, remissions or repayments to which it may be entitled.
Each Lender and the Agent shall reasonably cooperate with the Borrower at the
Borrower's written request and sole expense, in contesting any Taxes or Other
Taxes the Borrower would bear pursuant to this Section 2.13, provided, however,
that (i) no tax return of such Lender or the Agent is or would be held open as a
result of such contest, (ii) neither such Lender nor the Agent is required to
reopen a tax year that has already closed and (iii) such Lender and the Agent
shall, in the sole opinion of such Lender and the Agent, respectively, have
determined that such contest will leave such Lender and the Agent, respectively,
in no worse position than it would have been in had it not contested such Taxes
or Other Taxes. Nothing contained herein shall interfere with the right of a
Lender or the Agent to arrange its tax affairs in whatever manner it thinks fit,
if in the sole judgment of such Lender or the Agent, such contest would be
disadvantageous to such Lender or the Agent. In pursuing a contest in the
Lender's or the Agent's name, such Lender or the Agent will be represented by
counsel of such Lender's or the Agent's choice, and will defend against, settle
or otherwise control the contest and will not relinquish control or decision
making over the contest.
(h) (i) Any Lender claiming any additional amounts payable
pursuant to this Section 2.13 or (ii) upon a Withholding Tax Change, each
Lender, agrees to use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions) to avoid or minimize such additional
amounts and to change the jurisdiction of its Applicable Lending Office if the
making of such a change would avoid the need for, or reduce the amount of, any
additional amounts that may thereafter accrue and would not, in the reasonable
judgment of such Lender, be otherwise notably disadvantageous to such Lender.
The Borrower shall reimburse such Lender for such Lender's reasonable expenses
incurred in connection with such change or in considering such a change in an
amount not to exceed the Borrower's pro rata share of such expenses based on
such Lender's Commitment and Advances to the Borrower and the total lending
commitments and loans of such Lender to its similarly situated customers.
SECTION 2.14. Sharing of Payments, Etc. If any Lender shall obtain
any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of the Advances owing to it (other than
pursuant to Section 2.10, 2.13, 9.01(b), 9.04(c) or 9.07) in excess of its
ratable share of payments on account of the Advances obtained by all the
Lenders, such Lender shall forthwith purchase from the other Lenders such
participations in the Advances owing to them as shall be necessary to cause such
purchasing Lender to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each Lender
shall be rescinded and such Lender shall repay to the purchasing Lender the
purchase price to the extent of such recovery together with an amount equal to
such Lender's ratable share (according to the proportion of (i) the amount of
such Lender's required repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender by
delivering payment pursuant to this Section 2.14 may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrower in the amount of such
participation.
SECTION 2.15. Use of Proceeds. The proceeds of the Advances shall be
available (and the Borrower agrees that it shall use such proceeds) solely for
the funding of working capital requirements and other general corporate purposes
of the Borrower and its Subsidiaries, provided that such proceeds shall not be
used for the purpose of purchasing or carrying margin stock (within the meaning
of Regulation U issued by the Board of Governors of the Federal Reserve System).
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01.
Section 2.01 of this Agreement shall become effective on and as of the first
date (the "Effective Date") on which the following conditions precedent have
been satisfied:
(a) There shall have occurred no Material Adverse Change since
December 31, 2003 other than as disclosed in Schedule 3.01(a) hereto.
(b) There shall exist no action, suit, investigation, litigation
or proceeding affecting any of the Loan Parties or any of their respective
Subsidiaries pending or threatened before any court, governmental agency
or arbitrator that (i) could be reasonably likely to have a Material
Adverse Effect other than the matters described on Schedule 3.01(b) hereto
(the "Disclosed Litigation") or (ii) is initiated by any Person other than
a Lender in its capacity as a Lender that purports to affect the legality,
validity or enforceability of this Agreement or any Note or the
consummation of the transactions contemplated hereby, and there shall have
been no material adverse change in the status, or financial effect on any
Loan Party, of the Disclosed Litigation from that described on Schedule
3.01(b) hereto.
(c) All governmental and third party consents and approvals
necessary in connection with the execution, delivery and performance of
this Agreement and the Notes shall have been obtained (without the
imposition of any conditions that could reasonably be expected to
materially adversely affect the ability of any Loan Party to perform its
obligations hereunder) and shall remain in effect, and no law or
regulation shall be applicable that restrains, prevents or imposes adverse
conditions upon the transactions contemplated hereby that could reasonably
be expected to materially adversely affect the ability of any Loan Party
to perform its obligations hereunder.
(d) The Borrower shall have notified each Lender and the Agent in
writing as to the proposed Effective Date.
(e) The Borrower shall have paid all invoiced fees and expenses of
the Agent and the Lenders (including the invoiced fees and expenses of
Xxxxxx Xxxxx & Xxxxxxxx LLP, counsel to the Agent).
(f) On the Effective Date, the following statements shall be true
and the Agent shall have received for the account of each Lender a
certificate signed by a duly authorized officer of the Borrower, dated the
Effective Date, stating that:
(i) The representations and warranties contained in Section
4.01 are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes
a Default.
(g) The Agent shall have received on or before the Effective Date
the following, each dated such day, in form and substance satisfactory to
the Agent and (except for the Notes) in sufficient copies for each Lender:
(i) The Notes to the order of the Lenders, respectively.
(ii) Certified copies of the resolutions of the Board of
Directors of each Loan Party approving the transactions contemplated
by this Agreement and the Notes and of all documents evidencing
other necessary corporate action and governmental approvals, if any,
with respect to this Agreement and such Notes.
(iii) A certificate of the Secretary or an Assistant Secretary
of each Loan Party certifying the names and true signatures of the
officers of each Loan Party authorized to sign this Agreement and
the Notes and the other documents to be delivered hereunder.
(iv) A certificate, in substantially the form of Exhibit D
hereto, attesting to the Solvency of each Loan Party after giving
effect to the Borrowings contemplated hereunder, from the chief
financial officer of each such Loan Party.
(v) A favorable opinion of Xxxxxx Xxxxxx, Esq., Director of
the Legal and Regulatory Affairs Department of the Borrower,
substantially in the form of Exhibit E hereto.
(h) The termination in whole of the commitments of the lenders
party to the Revolving Credit Agreement dated as of May 16, 2002, amended
by a First Amendment dated as of June 30, 2003 (the "Existing Credit
Agreement") among the Borrower, Puerto Rico Telephone Company, Inc. , as
guarantor, BPPR, as administrative agent, and the payment in full of all
obligations outstanding under the Existing Credit Agreement. BPPR hereby
waives the requirement of three Business Days notice to terminate the
commitments under the Existing Credit Agreement.
SECTION 3.02. Conditions Precedent to Each Borrowing. The obligation
of each Lender to make an Advance on the occasion of each Borrowing shall be
subject to the conditions precedent that the Effective Date shall have occurred
and on the date of such Borrowing the following statements shall be true (and
each of the giving of the applicable Notice of Borrowing and, the acceptance by
the Borrower of the proceeds of such Borrowing shall constitute a representation
and warranty by the Borrower that on the date of such Borrowing such statements
are true):
(a) the representations and warranties contained in Section 4.01
are correct in all material respects on and as of the date of such
Borrowing, before and after giving effect to such Borrowing and to the
application of the proceeds therefrom, as though made on and as of such
date, and
(b) no event has occurred and is continuing, or would result from
such Borrowing or from the application of the proceeds therefrom, that
constitutes a Default.
SECTION 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by this Agreement
shall have received notice from such Lender prior to the date that the Borrower,
by notice to the Lenders, designates as the proposed Effective Date, specifying
its objection thereto. The Agent shall promptly notify the Lenders of the
occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) Each Loan Party is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation.
(b) The execution, delivery and performance by each Loan Party of
this Agreement and the Notes executed by it and the consummation of the
transactions contemplated hereby, are within such Loan Party's corporate
powers, have been duly authorized by all necessary corporate action, and
do not contravene (i) such Loan Party's charter or by-laws (or other
equivalent organizational documents) or (ii) any law or any material
contractual restriction binding on or affecting such Loan Party or, to the
knowledge of the chief financial officer of the Borrower, any other
contract the breach of which would limit the ability of any Loan Party to
perform its obligations under this Agreement or the Notes.
(c) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body or any
other third party is required for the due execution, delivery and
performance by any Loan Party of this Agreement or the Notes.
(d) This Agreement has been, and each of the Notes when delivered
hereunder will have been, duly executed and delivered by the Borrower.
This Agreement has been duly executed and delivered by each Guarantor.
Assuming that this Agreement has been duly executed by the Agent and BPPR,
as Lender, this Agreement is, and each of the Notes when delivered
hereunder will be, the legal, valid and binding obligation of the Borrower
enforceable against the Borrower in accordance with their respective
terms. Assuming that this Agreement has been duly executed by the Agent
and BPPR, as Lender, this Agreement is the legal, valid and binding
obligation of each Guarantor enforceable against each Guarantor in
accordance with its terms.
(e) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at December 31, 2003, and the related Consolidated
statements of income and cash flows of the Borrower and its Subsidiaries
for the fiscal year then ended, accompanied by an opinion of Ernst & Young
LLP, independent public accountants, copies of which have been furnished
to each Lender, fairly present, the Consolidated financial condition of
the Borrower and its Subsidiaries as at such date and the Consolidated
results of the operations of the Borrower and its Subsidiaries for the
periods ended on such date, all in accordance with generally accepted
accounting principles consistently applied.
(f) There is no pending or (to the knowledge of any Loan Party)
threatened action or proceeding, including, without limitation, any
Environmental Action, affecting any Loan Party or any of its Subsidiaries
before any court, governmental agency or arbitrator that is initiated by
any Person other than a Lender in its capacity as a Lender that purports
to affect the legality, validity or enforceability of this Agreement or
any Note.
(g) Neither the Borrower nor any of its Subsidiaries is an
Investment Company, as such term is defined in the Investment Company Act
of 1940, as amended.
(h) No Loan Party is engaged in the business of extending credit
for the purpose of purchasing or carrying margin stock (within the meaning
of Regulation U issued by the Board of Governors of the Federal Reserve
System), and no proceeds of any Advance will be used to purchase or carry
any margin stock or to extend credit to others for the purpose of
purchasing or carrying any margin stock.
(i) The obligations of the Borrower under this Agreement, and the
obligations of each Guarantor under Article VII of this Agreement rank
pari passu in right of payment with all other senior unsecured Debt of
such Person, including, without limitation, the Additional Bank
Indebtedness, and, except for any rights of set-off in favor of the agents
or the lenders under the credit agreements governing such Additional Bank
Indebtedness, no Lien over any Property of the Loan Parties has been
granted in favor of the lenders party to such agreement, as security for
the obligations of the Borrower and its Subsidiaries under the Additional
Bank Indebtedness.
(j) The Borrower understands and agrees that neither the Agent nor
any Lender is the agent or representative of the Borrower, and this
Agreement shall not be construed to make the Agent or any such Lender
liable to any third parties for any obligations of the Borrower or any of
its Subsidiaries in connection with the operation and administration of
their respective businesses.
ARTICLE V
COVENANTS OF THE LOAN PARTIES
SECTION 5.01. Affirmative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, each Loan Party
will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable
laws, rules, regulations and orders, such compliance to include, without
limitation, compliance with ERISA and Environmental Laws, except where the
failure to so comply would not have a Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of
its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or levies
imposed upon it or upon its property and (ii) all lawful claims that, if
unpaid, might by law become a Lien upon its property; provided, however,
that neither any Loan Party nor any of its Subsidiaries shall be required
to pay or discharge any such tax, assessment, charge or claim that is
being contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained, unless and until any Lien
resulting therefrom attaches to its property and becomes enforceable
against its other creditors and the aggregate of such Liens would have a
Material Adverse Effect.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses and
owning similar properties in the same general areas in which such Loan
Party or such Subsidiary operates; provided, however, that such Loan Party
and its Subsidiaries may self-insure to the extent consistent with prudent
business practice.
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain, its
corporate existence, rights (charter and statutory) and franchises;
provided, however, that each Loan Party and its Subsidiaries may
consummate any transaction permitted under Section 5.02(b) and provided
further that neither any Loan Party nor any of its Subsidiaries shall be
required to preserve any right or franchise if the senior management of
such Loan Party or of such Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct of the business
of such Loan Party or such Subsidiary, as the case may be, and that the
loss thereof is not disadvantageous in any material respect to such Loan
Party or such Subsidiary.
(e) Visitation Rights. During normal business hours and upon
reasonable notice from time to time, permit the Agent or any of the
Lenders or any agents or representatives thereof, to examine and make
copies of and abstracts from the records and books of account of
(excluding any confidential information),
and visit the properties of, such Loan Party and any of its Subsidiaries,
and to discuss the affairs, finances and accounts of such Loan Party and
any of its Subsidiaries with the appropriate representatives of such Loan
Party and together with the appropriate representatives of such Loan
Party's independent certified public accountants.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of such Loan Party and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, its material
properties that are used or useful in the conduct of its business in good
working order and condition, ordinary wear and tear excepted.
(h) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under this
Agreement with any of their Affiliates, other than another Loan Party, (i)
on terms that are fair and reasonable and no less favorable to such Loan
Party or such Subsidiary than it would obtain in a comparable arm's-length
transaction with a Person not an Affiliate except where the failure to do
so, in the aggregate, would not have a Material Adverse Effect, (ii) as
required by the Federal Communications Commission's rules and regulations
for transactions among affiliates or (iii) as contemplated by Services
Agreement.
(i) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within 60 days
after the end of each of the first three quarters of each fiscal
year of the Borrower, the Consolidated balance sheet of the Borrower
and its Subsidiaries as of the end of such quarter and the
Consolidated statements of income and cash flows of the Borrower and
its Subsidiaries for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter, duly
certified (subject to year-end audit adjustments) by the chief
financial officer, treasurer or controller of the Borrower as having
been prepared in accordance with generally accepted accounting
principles and certificates of the chief financial officer,
treasurer or controller of the Borrower as to compliance with the
terms of this Agreement and setting forth in reasonable detail the
calculations necessary to demonstrate compliance with Section 5.03,
provided that in the event of any change in GAAP used in the
preparation of such financial statements, the Borrower shall also
provide, if necessary for the determination of compliance with
Section 5.03, a statement of reconciliation showing the calculations
used for purposes of Section 5.03;
(ii) as soon as available and in any event within 120 days
after the end of each fiscal year of the Borrower, a copy of the
annual audited report for such year for the Borrower and its
Subsidiaries, containing the Consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such fiscal year and
the Consolidated statements of income and cash flows of the Borrower
and its Subsidiaries for such fiscal year, in each case accompanied
by an opinion acceptable to the Required Lenders by Ernst & Young
LLP or other independent public accountants of nationally recognized
standing, provided that in the event of any change in GAAP used in
the preparation of such financial statements, the Borrower shall
also provide, if necessary for the determination of compliance with
Section 5.03, a statement of reconciliation showing the calculations
used for purposes of Section 5.03;
(iii) as soon as possible and in any event within five
Business Days after the occurrence of each Default continuing on the
date of such statement, a statement of the chief financial officer,
treasurer or controller of the Borrower setting forth details of
such Default and the action that the Borrower has taken and proposes
to take with respect thereto;
(iv) promptly after the sending or filing thereof, copies of
any quarterly and annual reports and proxy solicitations that any
Loan Party sends to any of its securityholders, and copies of any
reports on Form 8-K that such Loan Party files with the Securities
and Exchange Commission (other than reports on Form 8-K filed solely
for the purpose of incorporating exhibits into a registration
statement previously filed with the Securities and Exchange
Commission);
(v) prompt notice of all actions and proceedings before any
court, governmental agency or arbitrator affecting any Loan Party or
any of its Subsidiaries of the type described in Section 3.01(b);
and
(vi) such other information respecting any Loan Party or any
of its Subsidiaries as any Lender through the Agent may from time to
time reasonably request.
(j) Certain Obligations Respecting Subsidiaries. The Borrower will
take such action, and will cause each of its Significant Subsidiaries and
any Significant Subsidiary formed with the intent of merging with or into
a Person that will be a Significant Subsidiary subject to this provision
to take such action, from time to time as shall be necessary to ensure
that all Significant Subsidiaries of the Borrower are party to, as Loan
Parties, the Guaranty provided in Article VII hereof. Without limiting the
generality of the foregoing, in the event that the Borrower or any of its
Significant Subsidiaries shall form or acquire any new Significant
Subsidiary, the Borrower or the respective Significant Subsidiary will
cause such new Significant Subsidiary to (i) become a party hereto and to
the Guaranty pursuant to a written instrument in form and substance
satisfactory to the Agent, and (ii) deliver such proof of corporate
action, incumbency of officers, opinions of counsel and other documents
relating to the foregoing as is consistent with those delivered by each
Loan Party pursuant to Section 3.01 hereof, or as any Lender or the Agent
shall have reasonably requested.
(k) Performance of Agreements. The Borrower will take all action
and do all things which it is authorized by law or contract to take and to
do in order to perform and observe and to cause the Loan Parties to
perform and observe, all covenants and agreements on its or their part to
be performed and observed under this Agreement and the Notes.
(l) Pari Passu Status. So long as any Commitments are available,
or any amounts under the Notes are outstanding hereunder, the obligations
of the Loan Parties hereunder and under the Notes shall remain of equal
priority (pari passu) with the obligations of the Loan Parties under the
Additional Bank Indebtedness.
(m) Further Assurances. The Borrower will execute, acknowledge
where appropriate, and deliver, and cause to be executed, acknowledged
where appropriate, and delivered, from time to time, promptly at the
request of the Agent or any of the Lenders, all such instruments and
documents as in the reasonable opinion of the Agent or such Lender are
necessary to carry out the intent and purpose of this Agreement and the
Notes.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of its
Subsidiaries to create or suffer to exist, any Lien on or with respect to
any of its properties, whether now owned or hereafter acquired, or assign
for security purposes (but not in connection with a bona fide sale
thereof), or permit any of its Subsidiaries to assign for security
purposes (but not in connection with a bona fide sale thereof), any right
to receive income; provided that nothing in this Section 5.02 shall be
construed to prevent or restrict the following:
(i) Permitted Liens,
(ii) purchase money Liens upon or in any real property or
equipment acquired or held by the Borrower or any of its
Subsidiaries in the ordinary course of business to secure the
purchase price of such property or equipment or to secure Debt
incurred solely for the purpose of financing the acquisition of such
property or equipment, or Liens existing on such property or
equipment at the time of its acquisition or conditional sales or
other similar title retention agreements with respect to property
hereafter acquired or extensions, renewals or replacements of any of
the foregoing for the same or a lesser amount, provided, however,
that no such Lien shall extend to or cover any properties of any
character other than the real property or equipment being acquired,
and no such extension, renewal or replacement shall extend to or
cover any properties not theretofore subject to the Lien being
extended, renewed or replaced,
(iii) the Liens existing on the Effective Date and described
on Schedule 5.02(a) hereto and other undisclosed Liens existing on
the Effective Date securing obligations in aggregate amount not to
exceed $10,000,000,
(iv) Liens on property of a Person existing at the time such
Person is merged into or consolidated with the Borrower or any of
its Subsidiaries; provided that any such Liens that were created
during the period immediately prior to such merger, consolidation or
acquisition were created in the ordinary course of business of such
Person and the Debt secured by such Liens does not exceed the fair
market value of the assets (including intangible assets) of such
Person so merged into or consolidated with the Borrower or any of
its Subsidiaries,
(v) the replacement, extension or renewal of any Lien
permitted by clauses (iii) and (iv) above upon or in the same
property theretofore subject thereto or the replacement, extension
or renewal (without increase in the amount or extension of the final
maturity date) of the Debt secured thereby,
(vi) Liens not otherwise permitted pursuant to clauses (i)
through (v) above securing obligations not to exceed at any one time
the amount of $10,000,000, and
(vii) Liens on property of a Receivables Subsidiary created in
connection with a Permitted Receivables Financing.
(b) Mergers, Etc. Merge or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in
a series of transactions) all or substantially all of its assets (whether
now owned or hereafter acquired) to, any Person, or permit any of its
Subsidiaries to do so, except that (i) any Subsidiary of the Borrower may
merge or consolidate with or into, or dispose of assets to, any other
Subsidiary of the Borrower, (ii) any Subsidiary of the Borrower may merge
into or dispose of assets to the Borrower, and (iii) the Borrower may
merge with any Subsidiary of Verizon so long as the surviving corporation
assumes all obligations of the Borrower hereunder and under the Notes and
each Guarantor confirms in writing its guarantee obligations hereunder
upon the occurrence of and following such merger, and provided, in each
case, that no Default shall have occurred and be continuing at the time of
such proposed transaction or would result therefrom.
(c) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except (i) as required or permitted by generally
accepted accounting principles or (ii) where the effect of such change,
together with all other changes in accounting policies or reporting
practices made pursuant to this clause (ii) since the Effective Date, is
immaterial to the Borrower and its Subsidiaries taken as a whole.
(d) Subsidiary Debt. Permit any of its Subsidiaries to create or
suffer to exist, any Debt other than:
(i) Debt owed to the Borrower or to a wholly owned
Subsidiary of the Borrower,
(ii) Debt which may be borrowed and outstanding from time to
time under the credit agreements existing on and as of the Effective
Date and described on Schedule 5.02(d) hereto (the "Existing Debt"),
and any Debt extending the maturity of, or refunding or refinancing,
in whole or in part, the Existing Debt, provided that the principal
amount of such Existing Debt shall not be increased above the
principal amount thereof outstanding immediately prior to such
extension, refunding or refinancing, and the direct and contingent
obligors therefor shall not be changed, as a result of or in
connection with such extension, refunding or refinancing,
(iii) unsecured Debt incurred in the ordinary course of
business aggregating not more than $150,000,000 for PRTC and for all
of the other Guarantors not more than $75,000,000 in the aggregate
at any one time outstanding,
(iv) Debt in respect of operating leases,
(v) endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of
business, and
(vi) Debt incurred by a Receivables Subsidiary created in
connection with a Permitted Receivables Financing.
SECTION 5.03. Financial Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the Borrower
will:
(a) Debt to EBITDA Ratio. Maintain a Debt to EBITDA Ratio, as at
the end of each fiscal quarter of the Borrower, of not more
than 3.0:1.0.
(b) EBITDA to Interest Ratio. Maintain an EBITDA to Interest
Ratio, as at the end of each fiscal quarter of the Borrower, of not less
than 3.5:1.0.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Advance
when the same becomes due and payable; or the Borrower shall fail to pay
any interest on any Advance within five Business Days after the same
becomes due and payable; or any fees or other amounts payable under this
Agreement or any Note are not paid within five Business Days after the
same becomes due and payable; or
(b) Any representation or warranty made or deemed made by the
Borrower herein or by the Borrower (or any of its officers) in connection
with this Agreement shall prove to have been incorrect in any material
respect when made or deemed made; or
(c) (i) Any Loan Party shall fail to perform or observe any term,
covenant or agreement contained in Section 5.01(d), (e), (h), (i)(iii),
(i)(v) or (j), 5.02 or 5.03, (ii) any Loan Party shall fail to
perform or observe any term, covenant or agreement contained in Section
5.01(i) (other than clauses (iii) and (v) thereof) if such failure shall
remain unremedied for five Business Days after written notice thereof
shall have been given to such Loan Party by the Agent or any Lender or
(iii) any Loan Party shall fail to perform or observe any other term,
covenant or agreement contained in this Agreement on its part to be
performed or observed if such failure shall remain unremedied for 30 days
after written notice thereof shall have been given to such Loan Party by
the Agent or any Lender; or
(d) Article VII is breached by any Guarantor or shall cease to be
in full force and effect or any Guarantor shall so state in writing; or
(e) The Borrower or any of its Subsidiaries shall fail to pay any
principal of or premium or interest on any Debt that is outstanding in a
principal, or in the case of Hedge Agreements net, amount of at least
$20,000,000 in the aggregate (but excluding Debt outstanding hereunder) of
the Borrower or such Subsidiary (as the case may be) (the "Requisite
Amount"), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and
such failure shall continue after the later of five Business Days and the
applicable grace period, if any, specified in the agreement or instrument
relating to such Debt; or any such Debt aggregating the Requisite Amount
shall be declared due and payable in accordance with its terms or any
other event shall occur or condition shall exist under any agreement or
instrument relating to any such Debt aggregating the Requisite Amount and
shall continue after the applicable grace period, if any, specified in
such agreement or instrument, if the effect of such event or condition is
to accelerate the maturity of such Debt; or any such Debt aggregating the
Requisite Amount shall be required to be prepaid or redeemed (other than
by a regularly scheduled required prepayment or redemption), purchased or
defeased in accordance with its terms, or any offer to prepay, redeem,
purchase or defease such Debt shall be required to be made in accordance
with its terms, in each case prior to the stated maturity thereof where
the cause of such prepayment, redemption, purchase or defeasance or offer
therefor is the occurrence of an event or condition that is premised on a
material adverse deterioration of the financial condition, results of
operation or properties of the Borrower or any of its Subsidiaries,
provided that with respect to Debt aggregating the Requisite Amount of the
types described in clauses (h) or (i) of the definition of "Debt" and to
the extent such Debt relates to the obligations of any Person other than
the Borrower or any of its Subsidiaries, no Event of Default shall occur
so long as the payment of such Debt is being contested in good faith and
by proper proceedings and as to which appropriate reserves are being
maintained; or any event shall occur or condition shall exist under any
agreement or instrument relating to any Debt that is outstanding in a
principal, or in the case of Hedge Agreements net, amount of at least
$40,000,000 and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or permit the acceleration of, the maturity of
such Debt; or
(f) The Borrower or any of its Subsidiaries shall generally not
pay their respective debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Borrower or its Subsidiaries seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver, trustee, custodian
or other similar official for it or for any substantial part of its
property and, in the case of any such proceeding instituted against it
(but not instituted by it), either such proceeding shall remain
undismissed or unstayed for a period of 60 days, or any of the actions
sought in such proceeding (including, without limitation, the entry of an
order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or for any substantial part of
its property) shall occur; or the Borrower or its Subsidiaries shall take
any corporate action to authorize any of the actions set forth in this
subsection (f) under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors; or
(g) Judgments or orders for the payment of money in excess of
$30,000,000 in the aggregate shall be rendered against the Borrower or its
Subsidiaries and enforcement proceedings shall have been commenced by any
creditor upon such judgment or order for which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; provided, however, that any such judgment or order shall
not be an Event of Default under this Section 6.01(g) if and for so long
as (i) (A) the amount of such judgment or order is covered by a valid and
binding policy of insurance between the defendant and the insurer or
insurers covering payment thereof, (B) such insurer shall be rated, or, if
more than one insurer, at least 90% of such insurers as measured by the
amount of risk insured, shall be rated, at least "A-" by A.M. Best Company
or its successor or its successors and (C) such insurer(s) has been
notified of, and has not disputed the claim made for payment of, the
amount of such judgment or order or (ii) (A) the amount of such judgment
or order is covered by a valid and binding indemnification agreement
between the defendant and an indemnitor, (B) such indemnitor shall have a
rating for any class of its non-credit enhanced long-term senior unsecured
debt of not lower than BBB+ by S&P or Baa3 by Xxxxx'x and (C) such
indemnitor has been notified of, and has not disputed the claim made for
payment of, the amount of such judgment or order; or
(h) (i) Verizon shall cease for any reason to maintain, directly
or indirectly, the Controlling Interest; or (ii) the Borrower shall for
any reason cease to own 100% of the Voting Stock of any Guarantor; or
(i) Any Loan Party or its ERISA Affiliates shall incur, or shall
be reasonably likely to incur, liability that would have a Material
Adverse Effect as a result of one or more of the following: (i) the
occurrence of any ERISA Event; (ii) the partial or complete withdrawal of
such Loan Party or its ERISA Affiliates from a Multiemployer Plan; or
(iii) the reorganization or termination of a Multiemployer Plan;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the
obligation of each Lender to make Advances to be terminated, whereupon the same
shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Required Lenders, by notice to the Borrower, declare the Notes,
all interest thereon and all other amounts payable under this Agreement to be
forthwith due and payable, whereupon the Notes, all such interest and all such
amounts shall become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are hereby expressly
waived by the Borrower; provided, however, that in the event of an actual or
deemed entry of an order for relief with respect to the Borrower under the
Federal Bankruptcy Code, (A) the obligation of each Lender to make Advances
shall automatically be terminated and (B) the Notes, all such interest and all
such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by the Borrower.
ARTICLE VII
GUARANTY
SECTION 7.01. Guaranty; Limitation of Liability. (a) Each Guarantor
hereby jointly and severally ("solidariamente") unconditionally and irrevocably
guarantees the punctual payment when due, whether at stated maturity, by
acceleration or otherwise, of all obligations of each other Loan Party now or
hereafter existing under this Agreement or any Note, whether for principal,
interest, fees, expenses or otherwise (such obligations, to the extent not paid
by such Loan Party or specifically waived in accordance with Section 9.01, being
the "Guaranteed Obligations"), and agrees to pay any and all expenses (including
reasonable counsel fees and expenses) incurred by the Agent or the Lenders in
enforcing any rights under this Article VII (this "Guaranty"). Without limiting
the generality of the foregoing, each Guarantor's liability shall extend to all
amounts that constitute part of the Guaranteed Obligations and would be owed by
any Loan Party to the Agent or any Lender under this Agreement or any Note but
for the fact that they are unenforceable or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving such Loan Party.
(b) (i) Each Guarantor and, by its acceptance of this Guaranty,
the Agent and each other Lender, hereby confirms that it is the intention of all
such parties that this Guaranty not constitute a fraudulent transfer or
fraudulent conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal,
state or Commonwealth of Puerto Rico law to the extent applicable to this
Guaranty. To effectuate the foregoing intention, the Agent, each other Lender
and each Guarantor hereby irrevocably agrees that the obligations of each
Guarantor under this Guaranty shall not exceed the greater of (A) the benefit
realized by such Guarantor from the proceeds of the Advances made from time to
time by the Borrower to such Guarantor and (B) the maximum amount that will,
after giving effect to such maximum amount and all other probable contingent and
fixed liabilities of such Guarantor that are relevant under applicable law, and
after giving effect to any collections from, rights to receive contribution
from, or payments made by or on behalf of each other Guarantor in respect of the
obligations of such other Guarantor under this Guaranty, result in the
obligations of such Guarantor under this Guaranty not constituting a fraudulent
transfer or fraudulent conveyance. For purposes hereof, "Bankruptcy Law" means
Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar Federal, state or Commonwealth of
Puerto Rico law for the relief of debtors.
(ii) Each Guarantor agrees that in the event any payment shall be
required to be made to the Lenders under this Guaranty, such Guarantor
will contribute, to the maximum extent such that the contribution will not
result in a fraudulent transfer or fraudulent conveyance, such amounts to
each other Guarantor so as to maximize the aggregate amount paid to the
Lenders under this Agreement and the Notes.
SECTION 7.02. Guaranty Absolute. Each Guarantor guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of
this Agreement and the Notes, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Agent or the Lenders with respect thereto. The obligations of each
Guarantor under this Guaranty are independent of the Guaranteed Obligations, and
a separate action or actions may be brought and prosecuted against such
Guarantor to enforce this Guaranty, irrespective of whether any action is
brought against the Borrower or any other Guarantor or whether the Borrower or
any other Guarantor is joined in any such action or actions. The liability of
each Guarantor under this Guaranty shall be irrevocable, absolute and
unconditional irrespective of, and, to the maximum extent permitted by law, each
Guarantor hereby irrevocably waives, any defenses it may now or hereafter have
in any way relating to, any or all of the following:
(a) any lack of validity or enforceability of this Agreement or
any agreement or instrument relating hereto;
(b) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Guaranteed Obligations, or any other
amendment or waiver of or any consent to departure from this Agreement or
any Note, including, without limitation, any increase in the Guaranteed
Obligations resulting from the extension of additional credit to the
Borrower or otherwise;
(c) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Guaranteed
Obligations;
(d) any change, restructuring or termination of the corporate
structure or existence of the Borrower; or
(e) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by the Agent or any Lender that might otherwise constitute
a defense available to, or a discharge of, any Guarantor, the Borrower or
any other guarantor or surety other than payment when due.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by the Agent or any Lender upon the
insolvency, bankruptcy or reorganization of the Borrower or any Guarantor or
otherwise, all as though such payment had not been made.
SECTION 7.03. Waiver. Each Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Guaranteed Obligations and this Guaranty, the right to require application
against the property of the Borrower ("excusion de bienes") or any other
Guarantor, and any requirement that the Agent or any Lender exhaust any right or
take any action against the Borrower or any other Person or any collateral. Each
Guarantor acknowledges that it will receive direct and indirect benefits from
the financing arrangements contemplated herein and that the waiver set forth in
this Section 7.03 is knowingly made in contemplation of such benefits. Each
Guarantor hereby waives any right to revoke this Guaranty, and acknowledges that
this Guaranty is continuing in nature and applies to all Guaranteed Obligations,
whether existing now or in the future.
SECTION 7.04. Continuing Guaranty; Assignments. This Guaranty is a
continuing guaranty and shall (a) remain in full force and effect until the
later of the cash payment in full of the Guaranteed Obligations and all other
amounts payable under this Guaranty and the Termination Date, (b) be binding
upon each Guarantor, its successors and assigns and (c) inure to the benefit of
and be enforceable by the Lenders, the Agent and their successors, transferees
and assigns. Without limiting the generality of the foregoing clause (c), any
Lender may assign or otherwise transfer all or any portion of its rights and
obligations hereunder (including, without limitation, all or any portion of its
Commitment, the Advances owing to it and the Note or Notes held by it) to any
other Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such Lender herein or otherwise, in each
case as provided in Section 9.07.
SECTION 7.05. Subrogation. No Guarantor will exercise any rights
that it may now or hereafter acquire against the Borrower or any other insider
guarantor that arise from the existence, payment, performance or enforcement of
such Guarantor's obligations under this Guaranty, including, without limitation,
any right of subrogation, reimbursement, exoneration, contribution or
indemnification and any right to participate in any claim or remedy of the Agent
or any Lender against the Borrower, any other Guarantor or any other insider
guarantor or any collateral, whether or not such claim, remedy or right arises
in equity or under contract, statute or common law, including, without
limitation, the right to take or receive from the Borrower, any other Guarantor
or any other insider guarantor, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security solely on
account of such claim, remedy or right, unless and until all of the Guaranteed
Obligations and all other amounts payable under this Guaranty shall have been
paid in full in cash and the Termination Date shall have occurred. If any amount
shall be paid to any Guarantor in violation of the preceding sentence at any
time prior to the later of the payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Guaranty and the
Termination Date, such amount shall be held in trust for the benefit of the
Agent and the Lenders and shall forthwith be paid to the Agent to be credited
and applied to the Guaranteed Obligations and all other amounts payable under
this Guaranty, whether matured or unmatured, in accordance with the terms of
this Guaranty, or to be held as collateral for any Guaranteed Obligations or
other amounts payable under this Guaranty thereafter arising. If (i) any
Guarantor shall make payment to the Agent or any Lender of all or any part of
the Guaranteed Obligations, (ii) all of the Guaranteed Obligations and all other
amounts payable under this Guaranty shall be paid in full in cash and (iii) the
Termination Date shall have occurred, the Agent and the Lenders will, at such
Guarantor's request and expense, execute and deliver to such Guarantor
appropriate documents, without recourse and without representation or warranty,
necessary to evidence the transfer by subrogation to such Guarantor of an
interest in the Guaranteed Obligations resulting from such payment by such
Guarantor.
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action. Each Lender hereby appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement as are delegated to the
Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be
required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required Lenders
and such instructions shall be binding upon all Lenders and all holders of
Notes; provided, however, that the Agent shall not be required to take any
action that exposes the Agent to personal liability or that is contrary to this
Agreement or applicable law. The Agent agrees to give to each Lender prompt
notice of each notice given to it by the Borrower pursuant to the terms of this
Agreement.
SECTION 8.02. Agent's Reliance, Etc. Neither the Agent nor any of
its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may treat
the payee of any Note as the holder thereof until the Agent receives and accepts
an Assignment and Acceptance entered into by the Lender that is the payee of
such Note, as assignor, and an Eligible Assignee, as assignee, as provided in
Section 9.07; (ii) may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (iii)
makes no warranty or representation to any Lender and shall not be responsible
to any Lender for any statements, warranties or representations (whether written
or oral) made in or in connection with this Agreement; (iv) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of this Agreement on the part of any Loan
Party or to inspect the property (including the books and records) of any Loan
Party except as specifically set forth in this Agreement; (v) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
instrument or document furnished pursuant hereto; and (vi) shall incur no
liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telecopier,
facsimile, telegram or telex) believed by it to be genuine and signed or sent by
the proper party or parties.
SECTION 8.03. BPPR and Affiliates. With respect to its Commitment,
the Advances made by it and the Note or Notes issued to it, BPPR shall have the
same rights and powers under this Agreement as any other Lender and may exercise
the same as though it were not the Agent; and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated, include BPPR in its individual
capacity. BPPR and its Affiliates may accept deposits from, lend money to, act
as trustee under indentures of, accept investment banking engagements from and
generally engage in any kind of business with, any Loan Party, any of its
Subsidiaries and any Person who may do business with or own securities of any
Loan Party or any of its Subsidiaries, all as if BPPR were not the Agent and
without any duty to account therefor to the Lenders.
SECTION 8.04. Lender Credit Decision. Each Lender acknowledges that
it has, independently and without reliance upon the Agent or any other Lender
and based on the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 8.05. Indemnification. The Lenders agree to indemnify the
Agent (to the extent not reimbursed by the Borrower), ratably according to the
respective principal amounts of the Advances owed each of them (or if no
Advances are at the time outstanding, ratably according to their Commitments),
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by, or asserted
against the Agent in any way relating to or arising out of this Agreement or any
action taken or omitted by the Agent under this Agreement, in each case whether
or not such investigation, litigation or proceeding is brought by any Lender,
its directors, shareholders or creditors or the Agent is otherwise a party
thereto, provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse the Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including reasonable counsel fees) incurred by the Agent
in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Agent is not
reimbursed for such expenses by the Borrower.
SECTION 8.06. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrower and may be removed
at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent which, so long as no Default shall have occurred and be
continuing, shall be subject to the Borrower's approval, which approval shall
not be unreasonably withheld. If no successor Agent shall have been so appointed
by the Required Lenders, and shall have accepted such appointment, within 30
days after the retiring Agent's giving of notice of resignation or the Required
Lenders' removal of the retiring Agent, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent, which shall be a commercial bank
organized or licensed under the laws of the United States of America or of any
State thereof or the Commonwealth of Puerto Rico and having a combined capital
and surplus of at least $500,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, discretion, privileges
and duties of the retiring Agent, and the retiring Agent, upon appointment of
such successor Agent, shall be discharged from its duties and obligations under
this Agreement. After any retiring Agent's resignation or removal hereunder as
Agent, the provisions of this Article VIII shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. (a) No amendment or waiver of any
provision of this Agreement or the Notes, nor consent to any departure by any
Loan Party therefrom, shall in any event be effective unless the same shall be
in writing and signed by the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which given; provided, however, that (i) no amendment, waiver or consent
shall, unless in writing and signed by all the Lenders, do any of the following:
(A) waive any of the conditions specified in Section 3.01, (B) change the
percentage of the Commitments or of the aggregate unpaid principal amount of the
Notes, or the number of Lenders, that shall be required for the Lenders or any
of them to take any action hereunder, (C) release any Guarantor from any of the
obligations imposed upon it by this Agreement or (D) amend this Section 9.01;
and (ii) no amendment, waiver or consent shall, unless in writing and signed by
the Required Lenders and each Lender that has or is owed obligations under this
Agreement or the Notes that are modified by such amendment, waiver or consent,
(A) increase the Commitment of such Lender or subject such Lender to any
additional obligations, (B) reduce the principal of, or interest on, the Note
held by such Lender or any fees or other amounts payable hereunder to such
Lender, (C) postpone any date fixed for any payment of principal of, or interest
on, the Note held by such Lender or any fees or other amounts payable hereunder
to such Lender or (D) waive the application of Section 2.14; and provided
further that no amendment, waiver or consent shall, unless in writing and signed
by the Agent in addition to the Lenders required above to take such action,
affect the rights or duties of the Agent under this Agreement or any Note.
(b) Each Lender grants (x) to the Agent the right to purchase all
(but not less than all) of such Lender's Commitments and Advances owing to it
and the Notes held by it and all of its rights and obligations hereunder and
under the Notes at a price equal to the aggregate amount of outstanding Advances
owed to such Lender (together with all accrued and unpaid interest, fees and
other amounts owed to such Lender), and (y) to the Borrower the right to cause
an assignment of all (but not less than all) of such Lender's Commitments and
Advances owing to it and the Notes held by it and all of its rights and
obligations hereunder and under the Notes to Eligible Assignees at a price equal
to the aggregate amount of outstanding Advances (together with all accrued and
unpaid interest, fees and other amounts owed to such Lender) owed to such
Lender, which right may be exercised by the Agent or the Borrower, as the case
may be, if such Lender refuses to execute any amendment, waiver or consent which
requires the written consent of all the Lenders and to which Lenders owed at
least 90% of the aggregate unpaid principal amount of Advances or, if no such
principal amount is then outstanding, Lenders having at least 90% of the
Commitments, the Agent and the Borrower have agreed. Each Lender agrees that if
the Agent or the Borrower, as the case may be, exercises its option hereunder,
it shall promptly execute and deliver all agreements and documentation necessary
to effectuate such assignment as set forth in Section 9.07.
SECTION 9.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telecopier and facsimile
communication) and mailed, telecopied, faxed or delivered by hand or by courier,
if to the Borrower or PRTC, at 0000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxx,
Xxxxxx Xxxx 00000 or X.X. Xxx 000000 Xxx Xxxx, Xxxxxx Xxxx 00000-0000,
Attention: Xxxxx Xxxxx (fax no.(000) 000-0000), with a copy to Xxxxx Xxxxx de la
Xxxx (fax no. (000) 000-0000); if to BPPR, as Lender, at its Domestic Lending
Office specified opposite its name on Schedule I hereto; if to any other Lender,
at its Domestic Lending Office specified in the Assignment and Acceptance
pursuant to which it became a Lender; and if to the Agent, at its address at 000
Xxxxx Xxxxxx Xxx., Popular Center, Xxxxx Xxxxx, Xxx Xxxx, Xxxxxx Xxxx 00000,
(fax no. (000) 000-0000, Attention: Corporate Banking - Manager; or, as to any
Loan Party or the Agent, at such other address as shall be designated by such
party in a written notice to the other parties and, as to each other party, at
such other address as shall be designated by such party in a written notice to
the Borrower and the Agent. All such notices and communications shall, when
mailed, telecopied or faxed, be effective when deposited in the first class
mails or, in the case of international delivery, when deposited with mails or
couriers that deliver within two Business Days or telecopied or faxed, provided
that notices and communications to the Agent pursuant to Article II, III or VIII
shall not be effective until received by the Agent, and provided, further, that
notices and communications to any Person required to be provided hereunder
within five Business Days shall only be made by hand or via telecopy, facsimile
or courier. Delivery by telecopier or facsimile of an executed counterpart of
any amendment or waiver of any provision of this Agreement or the Notes or of
any Exhibit hereto to be executed and delivered hereunder shall be effective as
delivery of a manually executed counterpart thereof.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any
Lender or the Agent to exercise, and no delay in exercising, any right hereunder
or under any Note shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. Costs and Expenses. (a) The Borrower agrees to pay on
demand all reasonable out-of-pocket costs and expenses of the Agent and the
Arranger in connection with the preparation, execution, delivery,
administration, modification and amendment of this Agreement, the Notes and the
other documents to be delivered hereunder, including, without limitation, (A)
all due diligence, syndication (including printing and distribution),
transportation, computer, duplication, appraisal, audit and insurance expenses
and (B) the reasonable fees and expenses of counsel for the Agent with respect
thereto and with respect to advising the Agent as to its rights and
responsibilities under this Agreement. Such expenses shall be paid by the
Borrower upon presentation of an itemized invoice (after reasonable time for the
Borrower to review such invoice), regardless of whether the transactions
contemplated by this Agreement are consummated. The Borrower further agrees to
pay on demand all costs and expenses of the Agent and the Lenders, if any
(including, without limitation, reasonable counsel fees and expenses), in
connection with the enforcement (whether through negotiations, legal proceedings
or otherwise) of this Agreement, the Notes and the other documents to be
delivered hereunder, including, without limitation, reasonable fees and expenses
of counsel for the Agent and each Lender in connection with the enforcement of
rights under this Section 9.04(a).
(b) The Borrower agrees to indemnify and hold harmless the Agent
and each Lender and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and against
any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) that may be
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or by reason of, or in connection with the
preparation for a defense of, any investigation, litigation or proceeding
arising out of, related to or in connection with (i) the Notes, this Agreement,
any of the transactions contemplated herein or the actual or proposed use of the
proceeds of the Advances or (ii) the actual or alleged presence of Hazardous
Materials on any property of the Borrower or any of its Subsidiaries or any
Environmental Action relating in any way to the Borrower or any of its
Subsidiaries, in each case whether or not such investigation, litigation or
proceeding is brought by any Loan Party, its directors, shareholders or
creditors or an Indemnified Party or any other Person or any Indemnified Party
is otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated, except to the extent such claim, damage, loss, liability
or expense (A) is found by a court of competent jurisdiction to have resulted
from such Indemnified Party's gross negligence or willful misconduct, (B) arises
from disputes among two or more Lenders (but not including any such dispute that
involves a Lender to the extent such Lender is acting in any different
capacity (i.e., Agent or Arranger) under the Credit Agreement or the Notes or to
the extent that it involves the Agent's syndication activities) or (C) arises
from or relates to a breach by such Indemnified Party of its obligations under
this Agreement. The Borrower also agrees not to assert any claim against the
Agent, any Lender, any of their Affiliates, or any of their respective
directors, officers, employees, attorneys and agents, on any theory of
liability, for special, indirect, consequential or punitive damages arising out
of or otherwise relating to the Notes, this Agreement, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the
Advances.
(c) If any payment of principal of, or Conversion of, any LIBOR
Rate Advance is made by the Borrower (or pursuant to Section 9.01(b)) to or for
the account of a Lender other than on the last day of the Interest Period for
such Advance, as a result of a payment, prepayment or Conversion pursuant to
this Agreement or acceleration of the maturity of the Notes pursuant to Section
6.01, the Borrower shall, upon demand by such Lender (with a copy of such demand
to the Agent), pay to the Agent for the account of such Lender any amounts
required to compensate such Lender for any additional losses, costs or expenses
that it may reasonably incur as a result of such payment or Conversion,
including, without limitation, any loss (excluding loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by any Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower contained
in Sections 2.10, 2.13 and 9.04 shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the Notes.
SECTION 9.05. Right of Set-off. Upon (i) the occurrence and during
the continuance of any Event of Default and (ii) the making of the request or
the granting of the consent specified by Section 6.01 by the Required Lenders to
authorize the Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01 and notice to the Borrower as required under Section
6.01, each Lender and each of its Affiliates is hereby authorized at any time
and from time to time, to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Lender
or such Affiliate to or for the credit or the account of any Loan Party against
any and all of the obligations of such Loan Party now or hereafter existing
under this Agreement and the Note held by such Lender, whether or not such
Lender shall have made any demand under this Agreement or such Note and although
such obligations may be unmatured. Each Lender agrees promptly to notify the
applicable Loan Party after any such set-off and application, provided that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender and its Affiliates under this Section are
in addition to other rights and remedies (including, without limitation, other
rights of set-off) that such Lender and its Affiliates may have.
SECTION 9.06. Binding Effect. This Agreement shall become effective
(other than Section 2.01, which shall only become effective upon satisfaction of
the conditions precedent set forth in Section 3.01) when it shall have been
executed by the Borrower and the Agent and when the Agent shall have been
notified by BPPR that it has executed it and thereafter shall be binding upon
and inure to the benefit of the Borrower, the Agent and each Lender and their
respective successors and assigns, except that the Borrower shall not have the
right to assign its rights hereunder or any interest herein without the prior
written consent of all of the Lenders.
SECTION 9.07. Assignments and Participations. (a) Each Lender may,
with the consent of the Agent (except as provided in clause (g) below) and, so
long as no Default has occurred and is continuing, the Borrower (such consent,
in the case of the Agent or the Borrower, not to be unreasonably withheld) and,
so long as no Default has occurred and is continuing, if demanded by the
Borrower (1) pursuant to Section 9.01(b), (2) following a request for a payment
to or on behalf of such Lender under Section 2.10 or Section 2.13, (3) following
a Withholding Tax Change affecting payments to such Lender or (4) following a
notice given by such Lender pursuant to Section 2.11, upon at least ten Business
Days' notice to such Lender and the Agent, will, assign to one or more Persons
all or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Advances owing to it
and the Note or Notes held by it); provided, that the Borrower may make demand
with respect to a Lender that has given notice pursuant to Section 2.11 only if
the Borrower makes such demand of all Lenders similarly situated that have given
such notice; provided, further, that (i) each such assignment shall be of a
constant, and not a varying, percentage of all rights and obligations under this
Agreement and the Notes, (ii) except in the case of an assignment to a Person
that, immediately prior to such assignment, was a Lender or an assignment of all
of a Lender's rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $5,000,000 or an
integral multiple of $1,000,000 in excess thereof, (iii) each such assignment
shall be to an Eligible Assignee, (iv) each such assignment made as a result of
a demand by the Borrower shall be arranged by the Borrower after consultation
with the Agent and shall be either an assignment of all of the rights and
obligations of the assigning Lender under this Agreement or an assignment of a
portion of such rights and obligations made concurrently with another such
assignment or other such assignments that together cover all of the rights and
obligations of the assigning Lender under this Agreement, (v) no Lender shall be
obligated to make any such assignment as a result of a demand by the Borrower
unless and until such Lender shall have received one or more payments from
either the Borrower or one or more Eligible Assignees in an aggregate amount at
least equal to the aggregate outstanding principal amount of the Advances owing
to such Lender, together with accrued interest thereon to the date of payment of
such principal and all other amounts payable to such Lender under this Agreement
and (vi) the parties to each such assignment shall execute and deliver to the
Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance, together with any Notes subject to such assignment and a processing
and recordation fee of $3,500 (which shall be paid by Persons other than the
Borrower unless such assignment is made as a result of a demand by the
Borrower). Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Assignment and Acceptance, (x) the
assignee thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (y) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights other than rights of indemnification under Section 9.04 or
otherwise relating to a time prior to the effective date of such Assignment and
Acceptance and be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of an assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of any Loan
Party or the performance or observance by any Loan Party of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other Lender and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi)
such assignee appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement as
are delegated to the Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations that
by the terms of this Agreement are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed by
an assigning Lender, an assignee representing that it is an Eligible Assignee
and the Borrower, together with the Note or Notes subject to such assignment,
the Agent shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower. Within five Business Days
after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Agent in exchange for the surrendered Note a new Note
to the order of such Eligible Assignee in an amount equal to the Commitment
assumed by it
pursuant to such Assignment and Acceptance and, if the assigning
Lender has retained a Commitment hereunder a new Note to the order of the
assigning Lender in an amount equal to the Commitment retained by it hereunder.
Such new Note or Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Note or Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A hereto.
(d) The Agent shall maintain at its address referred to in Section
9.02 a copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and addresses of the Lenders and
the Commitment of, and principal amount of the Advances owing to, each Lender
from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agent and the Lenders may treat each Person whose name is recorded
in the Register as a Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(e) Each Lender may sell participations to one or more banks or
other entities (other than the Borrower or any of its Affiliates) in or to all
or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment, the Advances owing to it
and the Notes held by it); provided, however, that (i) such Lender's obligations
under this Agreement (including, without limitation, its Commitment to the
Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender shall remain the holder of any such Note for all purposes of
this Agreement, (iv) the Borrower, the Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and (v) no participant
under any such participation shall have any right to approve any amendment or
waiver of any provision of this Agreement or any Note, or any consent to any
departure by the Borrower therefrom, except that a Lender may agree with a
participant as to the manner in which the Lender shall exercise the Lender's
rights to approve any amendment, waiver or consent to the extent that such
amendment, waiver or consent would reduce the principal of, or interest on, the
Notes or any fees or other amounts payable hereunder, in each case to the extent
subject to such participation, or postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation.
(f) Any Lender may at any time, without the consent of the Agent
or the Borrower, create a security interest in all or any portion of its rights
under this Agreement (including, without limitation, the Advances owing to it
and the Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System, provided, however, that no such assignment shall have the effect of
increasing the costs payable by the Borrower.
(g) Any Lender may at any time, without the consent of, but with
notice to the Agent, assign all or part of its rights or obligations under this
Agreement to any Affiliate of such Lender, provided, however, that no such
assignment shall have the effect of increasing the costs payable by the
Borrower.
SECTION 9.08. Nondisclosure. None of the Agent, any Lender or any
Affiliate thereof shall disclose without the prior consent of the Borrower
(other than to the Agent, another Lender or any such Affiliate, their respective
directors, employees, auditors, affiliates or counsel who shall agree to be
bound by the terms of this provision) any information with respect to the Loan
Parties or any Subsidiary thereof contained in financial statements, projections
or reports provided to the Agent, any Lender or any Affiliate thereof by, or on
behalf of, the Loan Parties or any Subsidiary, provided that the Agent, any
Lender or any Affiliate thereof may disclose any such information (a) as has
become generally available to the public in a manner, or through actions, which
do not violate the terms of this Section 9.08, (b) to, or as may be required or
appropriate in any report, statement or testimony submitted to, any municipal,
state or federal regulatory body having or claiming to have jurisdiction over
the Agent, any Lender or any Affiliate thereof or to the Federal Reserve Board
or the Federal Deposit Insurance Corporation or similar organizations (whether
in the United States or elsewhere) or their successors, (c) as may be required
or appropriate in response to any summons or subpoena or in connection with any
litigation, (d) in order to comply with any law, order, regulation or ruling
applicable to the Agent, any Lender or any Affiliate thereof and (e) to a
prospective co-lender or participant in the amounts outstanding hereunder or
under the Advances, provided, however, that such prospective co-lender or
participant executes an agreement containing provisions substantially
identical to those contained in this Section 9.08 and which shall by its terms
inure to the benefit of the Borrower and provided, further, that to the extent
practicable, the Agent, each Lender and their respective Affiliates shall use
reasonable best efforts to provide prior written notice of such disclosure to
the Borrower.
SECTION 9.09. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the Commonwealth of
Puerto Rico.
SECTION 9.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier or facsimile shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 9.11. Jurisdiction, Etc. (a) Each of the Loan Parties hereby
agrees that any suit, action or proceeding with respect to this Agreement or the
Notes or any other document executed hereunder to which it is a party or any
judgment entered by any court in respect thereof may be brought in the United
States District Court for the District of Puerto Rico or in the Court of First
Instance of Puerto Rico sitting in San Xxxx, as the party commencing such suit,
action or proceeding may elect in its sole discretion; and each party hereto
hereby irrevocably submits to the non-exclusive jurisdiction of such court for
the purpose of any such suit, action, proceeding or judgment. Each party hereto
further submits, for the purpose of any such suit, action, proceeding or
judgment brought or rendered against it, to the appropriate courts of the
jurisdiction of its domicile.
(b) Each of the Loan Parties hereby irrevocably consents to the
service of process in any suit, action or proceeding in such courts by the
mailing thereof by the Administrative Agent or any Lender by registered or
certified mail, postage prepaid, at its address set forth beneath its signature
hereto. Nothing herein shall in any way be deemed to limit the ability of the
Administrative Agent or any Lender to serve any such writs, process or summonses
in any other manner permitted by applicable law or to obtain jurisdiction over
the Loan Parties in such other jurisdictions, and in such manner, as may be
permitted by applicable law.
(c) Each of the Loan Parties hereby irrevocably waives any
objection that it may now or hereafter have to the laying of the venue of any
suit, action or proceeding arising out of or relating to this Agreement, the
Notes or any document executed hereunder brought in any such court and hereby
further irrevocably waives any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum.
SECTION 9.12. Waiver of Jury Trial. Each of the Borrower, the
Guarantors, the Agent and the Lenders hereby irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to this Agreement or the
Notes or the actions of the Agent or any Lender in the negotiation,
administration, performance or enforcement thereof.
SECTION 9.13. Exhibits and Schedules Incorporated. The Exhibits and
Schedules annexed hereto are hereby incorporated by reference herein as part of
this Agreement with the same effect as if set forth in the body hereof.
SECTION 9.14 2002 Revolving Credit Agreement. This Agreement
replaces and supersedes the Revolving Credit Agreement dated as of May 16, 2002
among the parties hereto, as amended by the First Amendment to the $90,000,000
Revolving Credit Agreement dated as of June 30, 2003 (the "2002 Revolving Credit
Agreement"). The 2002 Revolving Credit Agreement and the note issued thereunder
are hereby tereminated for all purposes.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
TELECOMUNICACIONES DE PUERTO RICO,
INC., as Borrower
By ____________________________
Name: Xxxxx Xxxxx de la Xxxx
Title: Treasurer
PUERTO RICO TELEPHONE COMPANY, INC.,
as Guarantor
By ____________________________
Name: Xxxxx Xxxxx de la Xxxx
Title: Treasurer
BANCO POPULAR DE PUERTO RICO,
as Administrative Agent
By ____________________________
Name: Xxxxxx Becemberg
Title: Assistant Vice President
BANCO POPULAR DE PUERTO RICO,
as Lender
By:____________________________
Name: Xxxxxx Becemberg
Title: Assistant Vice President
The Lenders
Commitment: $40,000,000 BANCO POPULAR DE PUERTO RICO
By:____________________________
Name: Xxxxxx Becemberg
Title: Assistant Vice President
Applicable Lending Office(s): 000 Xxxxx Xxxxxx Xxxxxx
Xxxx Xxx, Xxxxxx Xxxx
Attention: Manager - Corporate
Banking Division
Telecopier: (000) 000-0000
